The Role of Supreme Court Justices
Prepared Statement of Senator Chuck Grassley of Iowa
Chairman, Senate Committee on the Judiciary
The Role of Supreme Court Justices
Tuesday, March 15, 2016
Mr. President, the next Supreme Court Justice could dramatically change the direction of the Court. And the majority of this body believes the American people shouldn’t be denied the opportunity to weigh in on this question.
We believe there should be a debate about the role of Supreme Court Justices in our constitutional system.
With that in mind, I wanted to spend a few minutes discussing the appropriate role of the Court.
Before I turn to that, I’d note that the Minority Leader continues his daily missives on the Supreme Court vacancy. Most of us around here take what he says with a grain of salt. So, I’m not going to waste time responding to everything he says. I’ll just note that this is what he said in 2005 when the other side was filibustering a number of Circuit court nominations, and a few months before they filibustered the Alito nomination to the Supreme Court:
“The duties of the Senate are set forth in the U.S. Constitution. Nowhere in that document does it say the Senate has a duty to give presidential nominees a vote. It says appointments shall be made with the advice and consent of the Senate. That is very different than saying every nominee receives a vote.”
With that, I’ll turn to the appropriate role of a Justice under our Constitution.
Mr. President, part of what makes America an exceptional nation is our founding document. It’s the oldest written Constitution in the world.
It created a functioning republic, provided stability, protected individual rights, and was structured so that different branches and levels of government can resist encroachment into their areas of responsibility.
A written Constitution contains words with fixed meanings. The Constitution, and in many ways the nation, has survived because we have remained true to those words. And our constitutional republic is ultimately safeguarded by a Supreme Court that enforces the Constitution and its text.
Our Constitution creates a republic where the people decide who will govern them, and by what rules. The Supreme Court can override the people’s wishes only where the Constitution prohibits what the people’s elected officials have enacted.
Otherwise, the Court’s rulings are improper.
Stated differently, the Justices aren’t entitled to displace the democratic process with their own views.
Where the Constitution is silent, the people decide how they will be governed. This fundamental feature of our republic is critical to preserving liberty.
The temptation to apply their own views rather than the Constitution has always lurked among the Justices. This led to the Dred Scott decision. It led to striking down many economic regulations early in the last century.
And Americans know all too well in recent decades that the Supreme Court has done this regularly.
Justice Scalia believed that to ensure objectivity rather than subjectivity in judicial decision-making, the Constitution must be read according to its text and its original meaning as understood at the time those words were written.
The Constitution is law, and it has meaning. Otherwise, what the court offers is merely politics, masquerading as constitutional law.
Justice Scalia wrote that the rule of law is a law of rules. Law is NOT Justices reading their own policy preferences into the Constitution.
It’s not a multi-factor balancing test untethered to the text. We all know that Justices apply these balancing tests to reach their preferred policy results.
The court is not, and should not, be engaged in a continuing Constitutional Convention designed to update our founding document to conform with the Justices’ personal policy preferences.
The Constitution is not a “living” document. The danger with any Justice who believes they are entitled to ‘update’ the Constitution, is that they will always update it to conform with their own views.
That’s not the appropriate role of a Justice. As Justice Scalia put it, “The-times-they-are-a-changin’ is a feeble excuse for disregard of duty.”
Now, when conservatives say the role of Justices is to interpret the Constitution and not to legislate from the bench, we’re stating a view as old as the Constitution itself. The Framers separated the powers of the federal government.
In Federalist 78, Hamilton wrote, “The interpretation of the laws is the proper and peculiar province of the courts.” It’s up to elected representatives, who are accountable to the people, to make the law. It’s up to the courts to interpret it.
These views of the judicial role under the Constitution were once widely held. But beginning with the Warren Court of the 1960’s, the concept took hold that the Justices were change agents for society. Democracy was messy and slow. It was much easier for Justices to impose their will on society in the guise of constitutional interpretation.
Acting as a super-legislature was so much more powerful than deciding cases by reading the legal text and the record.
The view took hold that a Justice could vote on a legal question just as he or she would vote as a legislator. Perhaps the Framers underestimated what Federalist 78 called the “least dangerous branch,” one that “can take no active resolution whatever.”
Since the days of the Warren Court, this activist approach has been common: striking down as unconstitutional laws that the Constitution doesn’t even address.
Now, to his credit, President Obama has been explicit in his view that Justices aren’t bound by the law.
While he usually pays lip service to the traditional, limited and proper role of the court to decide cases based on law and facts, he is always quick to add that on the tough cases, a judge should look to her “heart,” or rely on “empathy.”
The President’s ‘empathy standard’ is completely inconsistent with the judicial duty to be impartial. Asking a Justice to consider empathy in deciding cases is asking a Justice to rule based on his or her own, personal notion of right and wrong, rather than law.
As I’ve said, everyone knows this President won’t be filling the current vacancy. Nonetheless, the President has indicated he intends to submit a nomination.
That’s ok. He’s constitutionally empowered to make the nomination. And the Senate holds the constitutional power to withhold consent, as we will.
But as we debate the proper role of the court, and what type of Justice the next President should nominate, it’s instructive to examine what the President says he’s looking for in a nominee.
The President made clear his nominee, whoever it is, won’t decide cases only on the law or the Constitution. He wrote that in “cases that reach the Supreme Court in which the law is not clear,” the Justice should apply his or her “life experience.”
This, of course, is just an updated version of the same standard we’ve heard from this President before.
It’s the ‘empathy’ standard.
Of course, a Justice who reaches decisions based on “empathy” or “life experience” has a powerful incentive to read every case as unclear, so they have a free hand to rely on their “life experiences” to reach ‘just’ outcomes.
The President also said any Justice he’d nominate would consider “the way [the law] affects the daily reality of people’s lives in a big, complicated democracy, and in rapidly changing times. That, I believe, is an essential element for arriving at just decisions and fair outcomes.”
With all respect to the President, any nominee who supports this approach is advocating an illegitimate role for the court.
It’s flatly not legitimate for any Justice to apply his or her own personal views of justice and fairness.
Perhaps most troubling is the President’s statement that any nominee of his must “arrive at just decisions and fair outcomes.” That’s the very definition of results-oriented judging. And it flies in the face of a judge as a fair, neutral, and totally objective decision-maker in any particular case.
A Justice is to question assumptions and apply rigorous scrutiny to the arguments the parties advance, as did Justice Scalia.
Under the President’s approach a Justice will always “arrive” where he or she started.
That isn’t judging. That’s a super-legislator in a black robe.
In our history, regrettably, we’ve had Justices who embraced this conception. Chief Justice Warren was infamous for asking, “Is it just? Is it fair?” without any reference to law, when he voted.
Justice Scalia’s entire tenure on the Court was devoted to ending this misplaced and improper approach.
In reality, a Justice is no more entitled to force another American to adhere to his or her own moral views or life experiences, than any other ordinary American.
Imposition of such personal biases subjects citizens to decrees from on high that they can’t change, except through constitutional amendment. And those decrees are imposed by officials they can’t vote out of office.
This is not the constitutional republic the Framers created.
The American people deserve the opportunity during this election year to weigh in on whether our next Justice should apply the text of the Constitution, or alternatively, whether a Justice should rely on his or her own “life experiences” and personal sense of right and wrong to arrive at “just decisions and fair outcomes.”
Senate Republicans will ensure the American people aren’t denied this unique and historic opportunity.